Nos. 15-56880, 16-55089, 16-55626
In the
United States Court of Appeals
for the Ninth Circuit
Pharrell Williams, an individual; Clifford
Harris, Jr., an individual; Robin Thicke,
an individual, dba I Like’em Thicke Music,
Plaintiffs-Counter-Defendants–Appellants,
and
More Water from Nazareth Publishing, Inc.; Star
Trak Entertainment; Interscope Records; UMG
Recordings, Inc.; Universal Music Distribution,
Counter-Defendants–Appellants,
v.
Frankie Christian Gaye, an individual; Marvin Gaye,
III, an individual; Nona Marvisa Gaye, an individual,
Defendants-Counter-Claimants–Appellees.
Appeal from the United States District Court
for the Central District of California
BRIEF OF PUBLIC KNOWLEDGE AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFFS-COUNTER-DEFENDANTS–APPELLANTS
Charles Duan
Counsel of Record
Public Knowledge
1818 N Street NW, Suite 410
Washington, DC 20036
(202) 861-0020
[email protected]
Counsel for amicus curiae
Rev. 847d6230
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae Public
Knowledge states that it has no parent corporation or publicly held corporation
that holds 10% or more of its stock.
(i)
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
II.
Perhaps More So than for Other Artistic Endeavors, Borrowing and
Adaptation Are Important to Creative Progress in Music . . . . . . . . . 4
A.
The Mechanics of Tonal Music Necessitate a Large Degree of Similarity Among Musical Compositions . . . . . . . . . . . . . . . . . 4
B.
Psychological and Physiological Relationships Between Music
and Humans Counsel Flexibility in Permissible Borrowing of
Musical Motifs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C.
Quotation, Homage, and Reference Are Essential to Advancement of the Musical Arts . . . . . . . . . . . . . . . . . . . . . . . . 12
A Requirement of a Stronger Showing of Substantial Similarity in Music Copyright Cases Is Appropriate to Promote the Progress of the
Arts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(ii)
TABLE OF AUTHORITIES
Cases
Arnstein v. Edward B. Marks Music Corp.,
82 F.2d 275 (2d Cir. 1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Darrell v. Joe Morris Music Co.,
113 F.2d 80 (2d Cir. 1940) (per curiam) . . . . . . . . . . . . . . . . . . . . 7
Eldred v. Ashcroft,
537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16
Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15–16
Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15–16
Fox Film Corp. v. Doyal,
286 U.S. 123 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Gaste v. Kaiserman,
863 F.2d 1061 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Golan v. Holder,
132 S. Ct. 873 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16
Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Kirtsaeng v. John Wiley & Sons, Inc.,
No. 15-375 (U.S. June 16, 2016) . . . . . . . . . . . . . . . . . . . . 1, 15–16
McRae v. Smith,
968 F. Supp. 559 (D. Colo. 1997) . . . . . . . . . . . . . . . . . . . . . . . . 7
Microsoft Corp. v. Motorola, Inc.,
795 F.3d 1024 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(iii)
Tisi v. Patrick,
97 F. Supp. 2d 539 (S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . 7
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Paramount Pictures, Inc.,
334 U.S. 131 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Walker v. Time Life Films, Inc.,
784 F.2d 44 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Constitutional Provisions
U.S. Const. amend. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
U.S. Const. art. I, § 8, cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Musical Works and Films
Ah! Vous Dirai-je, Maman (traditional French) . . . . . . . . . . . . . . . . . . 2
Kristen Anderson-Lopez & Robert Lopez, Do You Want to Build a Snowman?
(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Kristen Anderson-Lopez & Robert Lopez, Let It Go (2013) . . . . . . . . . . . 5
Harold Arlen & E.Y. Harburg, Over the Rainbow (1939) . . . . . . . . . . . . . 11
Baltimora, Tarzan Boy (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ludwig van Beethoven, Op. 125, Ninth Symphony (Choral) (1824) . . . . . . . 12
Guiseppe Cenci, Il Ballo di Mantova (La Mantovana) (c. 1645) . . . . . . . . . 2
Frédéric Chopin, Op. 35, Piano Sonata No. 2 (1839) . . . . . . . . . . . . . . . 13
Claude Joseph Rouget de Lisle, La Marseillaise (1792) . . . . . . . . . . . . . . 12
John Denver et al., Take Me Home, Country Roads (1971) . . . . . . . . . . . . 5
Antonín Dvořák, Ninth Symphony (From the New World) (1893) . . . . . . 9, 12
(iv)
Inception (Warner Bros. Pictures 2010) . . . . . . . . . . . . . . . . . . . . . . 9
Jaws (Universal Pictures 1975) . . . . . . . . . . . . . . . . . . . . . . . . 9, 13
Elton John & Tim Rice, Can You Feel the Love Tonight (1994) . . . . . . . . . . 5
Kings Row (Warner Bros. 1942) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Kočka Leze Dírou (traditional Czech) . . . . . . . . . . . . . . . . . . . . . . . 2
Demi Lovato et al., Really Don’t Care (2014) . . . . . . . . . . . . . . . . . . . 10
Morris Day & the Time, Jungle Love (1984) . . . . . . . . . . . . . . . . . . . 10
Wolfgang Amadeus Mozart, K. 525, Serenade No. 13 in G (Eine Kleine Nachtmusik) (1787) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bedřich Smetana, Vltava (Die Moldau) (1875) . . . . . . . . . . . . . . . . . 2, 6
Stephen Sondheim & Leonard Bernstein, America (1957) . . . . . . . . . . . . 5
Star Wars (20th Century Fox 1977) . . . . . . . . . . . . . . . . . . . . . . . . 13
Richard Strauss, Tod und Verklärung (Death and Transfiguration) (1890) . . . 6
Peter Ilyich Tchaikovsky, 1812 Overture (1880) . . . . . . . . . . . . . . . . . 12
The Wheels on the Bus (traditional) . . . . . . . . . . . . . . . . . . . . . . . . 5
Twinkle, Twinkle, Little Star (traditional) . . . . . . . . . . . . . . . . . . . . . 2
Adam Young et al., Good Time (2012) . . . . . . . . . . . . . . . . . . . . . . . 10
Other Sources
Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing,
Copyright and Cultural Context, 84 N.C. L. Rev. 547 (2006) . . . . . . . . 13–14
Axis of Awesome, 4 Four Chord Song, YouTube (Dec. 10, 2009), https://
www.youtube.com/watch?v=5pidokakU4I . . . . . . . . . . . . . . . . . . . . 5
(v)
Jessica Barbour, The 1812 Overture: An Attempted Narration, Oxford U.
Press Blog (Aug. 20, 2013), http://blog.oup.com/2013/08/1812-overturetchaikovsky-romantic-music/ . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Michael Beckerman, Dvořák’s “New World” Largo and The Song of Hiawatha, 19th Century Music, Summer 1992, at 35 . . . . . . . . . . . . . . . . 12
Leonard Bernstein, The Infinite Variety of Music (Anchor Books ed. 2007) . . . 6
Daniel T. Blumstein et al., Do Film Soundtracks Contain Nonlinear Analogues to Influence Emotion?, Biology Letters, May 26, 2010, available at
http://rsbl.royalsocietypublishing.org/content/early/2010/05/20/rsbl.2010.
0333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Leon Botstein, Reversing the Critical Tradition: Innovation, Modernity, and
Ideology in the Work and Career of Antonín Dvořák, in Dvořák and His World
(Michael Beckerman ed., 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stephen Breyer, The Uneasy Case for Copyright, 84 Harv. L. Rev. 281 (1970) . . 17
Jeffrey Cadwell, Expert Testimony, Scènes à Faire, and Tonal Music: A (Not
So) New Test for Infringement, 46 Santa Clara L. Rev. 137 (2005) . . . . . 6–7, 18
Jeremy Day-O’Connell, Speech, Song, and the Minor Third: An Acoustic
Study of the Stylized Interjection, 30 Music Perception 441 (2013) . . . . . . . 11
Rich Drees, Cinematic Swipe: Williams’ Star Wars And Korngold’s King’s
Row Scores, Film Buff Online (Oct. 28, 2013), http://www.filmbuffonline.
com/FBOLNewsreel/wordpress/2013/10/28/cinematic-swipe-williamsstar-wars-korngold-kings-row-scores/ . . . . . . . . . . . . . . . . . . . . . . 13
Marc Hirsh, Song List, Six Four One Five, http://sixfouronefive.blogspot.
com/2009/01/song-list.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Marc Hirsh, Striking a Chord, Boston Globe (Dec. 31, 2008), http://archive.
boston.com/ae/music/articles/2008/12/31/striking_a_chord/ . . . . . . . . . . 6
Intensely Pleasurable Responses to Music Correlate with Activity in Brain Regions Implicated in Reward and Emotion, 98 Proc. Nat’l Acad. Sci. 11818
(2001), available at http://www.pnas.org/content/98/20/11818.full . . . . . . . 8
(vi)
Dave Itzkoff, Hans Zimmer Extracts the Secrets of the “Inception” Score, N.Y.
Times (July 28, 2010), http://artsbeat.blogs.nytimes.com/2010/07/28/hanszimmer-extracts-the-secrets-of-the-inception-score/ . . . . . . . . . . . . . . 9
J. Michael Keyes, Musical Musings: The Case for Rethinking Music Copyright
Protection, 10 Mich. Telecomm. & Tech. L. Rev. 407 (2004) . . . . . . . . . 8, 13
Darryn King, The Legacy of the Star Wars “Imperial March” Marches On,
Vanity Fair (Dec. 15, 2015), http://www.vanityfair.com/hollywood/2015/
12/star-wars-imperial-march-history . . . . . . . . . . . . . . . . . . . . . . . 13
Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. &
Econ. 265 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Randy Lewis, The Synth Is Back: KORG and Moog Revive Golden-Era Analog Synthesizers, L.A. Times (Jan. 21, 2015), http://www.latimes.com/
entertainment/music/la-et-ms-namm-preview-20150122-story.html . . . . . 8
Mark Yoffe Liberman, The Intonational System of English (1979) . . . . . . . . 11
Patrick Metzger, The Millennial Whoop: The Simple Melodic Sequence That’s
Showing Up All Over Contemporary Pop, Slate Mag. (Aug. 29, 2016), http://
www.slate.com/blogs/browbeat/2016/08/29/the_millennial_whoop_the_
simple_wa_oh_ing_melodic_sequence_showing_up_all.html . . . . . . 10–11
Neil Weinstock Netanel, First Amendment Constraints on Copyright After
Golan v. Holder, 60 UCLA L. Rev. 1082 (2013) . . . . . . . . . . . . . . . . . . 16
Andrew P. Nosal et al., The Effect of Background Music in Shark Documentaries on Viewers’ Perceptions of Sharks, PLOS One, Aug. 3, 2016, http://
journals.plos.org/plosone/article?id=10.1371/journal.pone.0159279 . . . . . . 9
Garson O’Toole, Good Artists Copy; Great Artists Steal, Quote Investigator
(Mar. 6, 2013), http://quoteinvestigator.com/2013/03/06/artists-steal/ . . . . . 4
Rob Paravonian, Pachelbel Rant, YouTube (Nov. 21, 2006), https://www.
youtube.com/watch?v=JdxkVQy7QLM . . . . . . . . . . . . . . . . . . . . . . 5
(vii)
Rockin Cowboy, Why Are Four-Chord Songs (I-V-vi-IV) So Prevalent?,
Music: Prac. & Theory Stack Exchange (Feb. 13, 2015), http://music.
stackexchange.com/questions/29785/why-are-four-chord-songs-i-v-vi-ivso-prevalent/29789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
John A. Sloboda, Music Structure and Emotional Response: Some Empirical
Findings, 19 Psychol. Music 110 (1991) . . . . . . . . . . . . . . . . . . . . . . 8
Eric von Hippel, Democratizing Innovation (2005) . . . . . . . . . . . . . . . . 17
John R. Zoesch III, “Discontented Blues”: Jazz Arrangements and the Case
for Improvements in Copyright Law, 55 Cath. U. L. Rev. 867 (2006) . . . . . . . 13
(viii)
INTEREST OF AMICUS CURIAE
Public Knowledge¹ is a non-profit organization that is dedicated to preserving the openness of the Internet and the public’s access to knowledge, promoting
creativity through balanced intellectual property rights, and upholding and protecting the rights of consumers to use innovative technology lawfully. Public
Knowledge advocates on behalf of the public interest for a balanced copyright
system, particularly with respect to new and emerging technologies.
Public Knowledge has previously served as amicus in copyright cases. E.g.,
Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1052 n.22 (9th Cir. 2015) (quoting
Public Knowledge brief); Kirtsaeng v. John Wiley & Sons, Inc., No. 15-375 (U.S.
June 16, 2016); Golan v. Holder, 132 S. Ct. 873 (2012); Eldred v. Ashcroft, 537 U.S.
186 (2003).
Counsel would like to thank Crystal Evans of American University for her
able contributions to this brief.
¹Pursuant to Federal Rule of Appellate Procedure 29(a), all parties received
appropriate notice of and consented to the filing of this brief. Pursuant to Rule
29(c)(5), no counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund the preparation
or submission of the brief. No person or entity, other than amicus, its members,
or its counsel, made a monetary contribution to the preparation or submission of
this brief.
1
SUMMARY OF ARGUMENT
Bedřich Smetana’s Die Moldau, a symphonic tone poem depicting the great
river of the composer’s homeland, opens with a grand, sweeping melody that is
immediately recognizable to many. Yet that melody neither began nor ended with
Smetana. It may have originated from a popular Italian song La Mantovana from
the sixteenth century, or perhaps from a Czech nursery rhyme Kočka Leze Dírou,
or the Swedish melody Ack Värmeland Du Sköna. Or perhaps it was a minor-key
adaptation of the French Ah! Vous Dirai-je, Maman, the melody known to Englishspeakers as Twinkle, Twinkle, Little Star among others. A nearly-identical melody
appears in Hatikvah, the Israeli national anthem.
In this case that tests what degree of similarity between musical works will
give rise to copyright liability, it must be considered that similarities and recurrences among musical works like Die Moldau bear a unique and important function in the musical arts. Borrowing from past works occurs with frequency in
musical composition for at least two reasons: Western music theory strongly
favors certain structures in music, and the emotive and psychological effect of
music on listeners requires composers to reuse sounds to trigger those effects.
As a result, and as documented throughout this brief, there are numerous
examples of songs quoting other songs, reusing similar elements, and borrowing structures, themes, instrumentation, and other aspects of past works. The
2
purpose of borrowing is rarely to pass off or misappropriate others’ works, and
indeed, in certain genres of music, borrowing is central to the advancement of
the state of the art in music.
That state of the musical arts suggests that greater flexibility in borrowing
music elements ought to be permitted before copyright liability attaches. Copyright, at its core, has a public-oriented purpose: rather than merely rewarding
authors for the sake of rewarding them, copyright ultimately seeks to increase
the public’s access to new creative works. But since new creative works build on
those of the past—future Smetanas using contemporary La Mantovanas—limits
on copyright that enable incremental innovation are just as essential to the statutory scheme as the exclusive right itself.
In a field such as music in which borrowing is especially important to future work, those limits on copyright become especially important as well. In
recognition of this, the substantial similarity doctrine and underlying questions
of copyrightability ought to be interpreted flexibly by this Court, to ensure that
copyright law does not stifle musical progress, but rather promotes it.
3
ARGUMENT
I.
Perhaps More So than for Other Artistic Endeavors, Borrowing and Adaptation Are Important to Creative Progress in Music
The phrase “good artists copy; great artists steal” is of indefinite origin, at-
tributed to Picasso, Stravinsky, and others,² but the sentiment is unquestionable:
in all fields of art, borrowing from past works is an essential element. In the field
of music, borrowing takes on a particular importance, due to the nature of music
as an art form.
A.
The Mechanics of Tonal Music Necessitate a Large Degree of
Similarity Among Musical Compositions
As an initial matter, greater similarity among musical works is to be ex-
pected simply due to the ordinary structures of Western music. Music in that
tradition is composed on a scale of twelve notes. Groups of usually three notes
played together form chords, and a series of chords forms a chord progression,
which can serve as a harmony basis for a song or piece of music.
While as a matter of mathematical theory there is an enormous number
of possible chord progressions, standard Western music theory deems certain
chord progressions more conventional than others. As a result, patterns recur
²Garson O’Toole, Good Artists Copy; Great Artists Steal, Quote Investigator
(Mar. 6, 2013), URL supra p. vii.
4
regularly in all manner of songs. The authentic cadence V-I³ shows up at the
beginnings of Mozart’s Eine Kleine Nachtmusik, the children’s song The Wheels
on the Bus, Disney’s Do You Want to Build a Snowman from Frozen, and Sondheim
and Bernstein’s America from West Side Story, just to name a few.
More striking is the recurrence of the chord progression I-V-vi-IV or permutations thereof in popular music. That progression, featured in Elton John’s
Can You Feel the Love Tonight, John Denver’s Country Roads, and Let It Go from
Frozen, appears in at least 547 popular songs according to one listing.⁴ There has
been no small amount of commentary on the progression’s ubiquity. A comedy
troupe asks whether “you can take those four chords, repeat them, and pump out
every pop song ever,” and answers the question by playing thirty-eight standards
in rapid succession over those same chords.⁵
The repetition of these patterns across music is not mere copying among
musicians; these patterns are repeated because they are the ones expected of
music today. The four-chord pattern above, according to expert musicians, per³These symbols indicate the Roman numeral analysis of chord progressions,
as is standard in music theory. They are included primarily for purpose of identifying and searching for relevant authority, but by way of brief explanation, each
number represents the base note of the chord relative to the key signature (e.g.,
V indicates a chord beginning with the fifth note of the scale), and lowercase and
uppercase indicate minor and major chords, respectively.
⁴See Marc Hirsh, Song List, Six Four One Five, URL supra p. vi.
⁵See Axis of Awesome, 4 Four Chord Song, YouTube (Dec. 10, 2009), URL supra
p. v; see also Rob Paravonian, Pachelbel Rant, YouTube (Nov. 21, 2006), URL supra
p. vii.
5
mits songs to be cyclical and fluid, and also gives them “emotional heft.”⁶ One
commenter went so far as to provide a “mathematical explanation for why these
four chords seem to work well.”⁷
Reuse of basic harmonic patterns encourages creativity. The hundreds of
different songs made from the same four-chord progression demonstrate how a
single building block can support a multitude of creative works. The famed composer Leonard Bernstein once showed how a simple four-note melody could generate songs ranging from little French folk tunes to Smetana’s poetic Die Moldau
to Strauss’s grand Death and Transfiguration—basic chords and notes open up “a
whole new Milky Way of possibilities.” Leonard Bernstein, The Infinite Variety of
Music 34–38 (Anchor Books ed. 2007).
No wonder then, that “[b]ecause composers, knowingly or unknowingly,
tend to utilize the same basic patterns, such as chord progressions and cadences,
music can often sound similar without actually being similar at all.” Jeffrey Cadwell, Expert Testimony, Scènes à Faire, and Tonal Music: A (Not So) New Test for
Infringement, 46 Santa Clara L. Rev. 137, 165 (2005).
⁶Marc Hirsh, Striking a Chord, Boston Globe (Dec. 31, 2008), URL supra p. vi
(terming the four-chord set the “sensitive female chord progression” for no particularly good reason).
⁷Rockin Cowboy, Why Are Four-Chord Songs (I-V-vi-IV) So Prevalent?, Music:
Prac. & Theory Stack Exchange (Feb. 13, 2015), URL supra p. viii.
6
All of this suggests that, to ensure that composers of music have these basic tools of chord progressions and standard Western music tropes available,
copyright in such basic elements of music ought to be sharply limited. Indeed,
judges have recognized that musical elements “do not admit of so many agreeable permutations that we need be amazed at the re-appearance of old themes.”
Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936).⁸ When
among possible permutations of musical notes “only a few are pleasing; and
much fewer still suit the infantile demands of the popular ear,” it must be said
that “[r]ecurrence is not therefore an inevitable badge of plagiarism.” Darrell v.
Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940) (per curiam) (panel including
Learned Hand, J.).⁹ Such basic elements might be properly viewed as scènes à
faire, and no infringement of copyright ought to lie for copying them.¹⁰
⁸See also Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988) (noting “the
limited number of notes and chords available to composers and the resulting fact
that common themes frequently reappear in various compositions, especially in
popular music”).
⁹See also Tisi v. Patrick, 97 F. Supp. 2d 539, 543 (S.D.N.Y. 2000) (noting that
particular chord progression “can be found in songs in all genres” and thus “does
not constitute a significant similarity”); McRae v. Smith, 968 F. Supp. 559, 566 (D.
Colo. 1997) (allegedly similar chord progressions “are the most common chord
progressions in all of the music of Western civilization”).
¹⁰See Cadwell, supra, at 164–65.
7
B.
Psychological and Physiological Relationships Between Music and Humans Counsel Flexibility in Permissible Borrowing
of Musical Motifs
Recurrence of elements of musical composition occurs not only because the
mechanics and conventions of music demands it. Recurrence is also necessary
for music to serve its basic purpose of evoking emotional and psychological responses from listeners, a need that provides yet further reason for allowing composers a wide berth before copyright infringement should attach.
Perhaps uniquely among disciplines, “music speaks to us in mysterious and
profound ways and invokes within us numerous physiological and emotional
responses.”¹¹ Indeed, scientists have documented the physiological response of
the brain’s pleasure and reward centers to music.¹²
A composer who wishes to evoke such responses must almost certainly borrow elements from prior works to do so. Reuse of instrumentation is a classic example: the presence of the Moog analog synthesizer sound cannot but recall nostalgia for the ’70s and ’80s. See Randy Lewis, The Synth Is Back: KORG and Moog
¹¹J. Michael Keyes, Musical Musings: The Case for Rethinking Music Copyright
Protection, 10 Mich. Telecomm. & Tech. L. Rev. 407, 421 (2004); see also John A. Sloboda, Music Structure and Emotional Response: Some Empirical Findings, 19 Psychol. Music 110 (1991); Daniel T. Blumstein et al., Do Film Soundtracks Contain
Nonlinear Analogues to Influence Emotion?, Biology Letters, May 26, 2010, available at URL supra p. vi.
¹²See, e.g., Intensely Pleasurable Responses to Music Correlate with Activity in
Brain Regions Implicated in Reward and Emotion, 98 Proc. Nat’l Acad. Sci. 11818
(2001), available at URL supra p. vi.
8
Revive Golden-Era Analog Synthesizers, L.A. Times (Jan. 21, 2015), URL supra p. vii.
And reuse of musical motifs to trigger emotional responses is frequent, with two
particular examples described below.
1.
Few are unfamiliar with the accelerating two-note pattern that is the
opening of the theme to the film Jaws. Made up of two low-pitched notes in
rapid succession punctuating shorter and shorter periods of silence, it is a musical
theme that is ingrained with a sense of fear and impending danger.
There can be little doubt of the psychological effect of that famous leitmotif.
A recent study found that ominous music during nature documentaries led viewers to have more negative views of sharks, seeing them as more frightening. See
Andrew P. Nosal et al., The Effect of Background Music in Shark Documentaries on
Viewers’ Perceptions of Sharks, PLOS One, Aug. 3, 2016, at 10–11 fig.3, URL supra
p. vii.
But the Jaws theme is not original to Jaws. A remarkably similar two-note
pattern introduces the fourth movement of Dvořák’s Ninth Symphony From the
New World, popularly known as the New World Symphony. There, the motif
serves a similar purpose of dramatically introducing the famous melody of that
symphony. Nor would the use of a low-pitched two-note throb end with Jaws.
The more recent film Inception employs a similar motif (itself derived from a mechanical alteration to a 1956 French tune) to indicate a sense of urgency. See Dave
9
Itzkoff, Hans Zimmer Extracts the Secrets of the “Inception” Score, N.Y. Times (July
28, 2010), URL supra p. vii.
Thus, these three pieces, though vastly different, rely on the same musical
device to evoke a similar sense of dramatic tension. That device is an important
tool in the toolbox of composition, one that ought to be available to all musicians.
2.
A more contemporary example of a recurring motif is the so-called “mil-
lennial whoop.” Identified recently by musician and online blogger Patrick Metzger, the sound comprises an upbeat alternation between the notes sol and mi (to
use the solfège system popularized by The Sound of Music), generally vocalized
with the syllables “wa-oh-wa-oh.” See Patrick Metzger, The Millennial Whoop:
The Simple Melodic Sequence That’s Showing Up All Over Contemporary Pop, Slate
Mag. (Aug. 29, 2016), URL supra p. vii. It has appeared in thirty-nine songs according to one listing, including millennial-popular hits (hence the name) such
as Katy Perry and Snoop Dogg’s California Gurls, Carly Rae Jepsen’s Good Time,
Demi Lovato’s Really Don’t Care, and Frank Ocean’s Ivy. See id.
There is no particular song known to have given rise to the millennial
whoop. The sound might be described as a stylized form of Tarzan’s ululating
yell—indeed, 1980s songs referencing Tarzan use the musical pattern that would
become the millennial whoop.¹³ Alteration between those two same notes ap¹³See Baltimora, Tarzan Boy (1985); Morris Day & the Time, Jungle Love (1984).
10
pears in the 1939 song Over the Rainbow from The Wizard of Oz (at “someday I’ll
wish upon a star”). Metzger himself reaches further back to teasing songs such
as “nanny nanny boo boo” and “I know something you don’t know,” ones that in
Leonard Bernstein’s words “transcend cultures across the globe.” See id.
Why, then, is it so common? The answer seems to be that the particular
pattern is simply compelling to our ears, based both on our inherent nature and
our culture. The minor-third interval that characterizes the two notes of the millennial whoop shows up in so many common speech patterns (yoo-hoo, uh-oh
and peek-a-boo) that it might seem practically innate, and one linguistic study
largely confirmed the prevalence of that minor-third interval in spoken words.
See Jeremy Day-O’Connell, Speech, Song, and the Minor Third: An Acoustic Study
of the Stylized Interjection, 30 Music Perception 441, 443, 455 (2013).¹⁴ That the
millennial whoop recalls the signature sound of Tarzan strengthens its tie to a
sense of carefree delight that characterizes the many songs in which it appears.
One might describe it as the sound of happiness.
So it should come as no surprise that this particular musical snippet occurs
so frequently across time. It is again a necessary and conventional part of the
musician’s toolbox for conveying particular emotions and memories to listeners.
¹⁴See also Mark Yoffe Liberman, The Intonational System of English 30 (1979)
(describing the minor third as “prominent in English chants” and “a very natural
interval for people to sing”).
11
C.
Quotation, Homage, and Reference Are Essential to Advancement of the Musical Arts
Given the constraints of tonal music theory and the desire to use memory
recall to elicit emotional responses, it is no surprise that the creative landscape of
music relies so heavily on borrowing and adaptation of past works or generally
known motifs.
Quotation abounds in classical music. Dvořák quoted heavily from other
composers, the most notable example being the third movement of the New
World Symphony using the exact opening notes of the parallel movement of
Beethoven’s Ninth Symphony, in an effort to draw connections between European tradition, Dvořák’s Czech heritage, and American and other cultural influences.¹⁵ Tchaikovsky’s 1812 Overture juxtaposes Russian songs with the French
national anthem La Marseillaise to depict a battle between Tchaikovsky’s motherland and the Napoleonic army.¹⁶ These are not unique examples:
Bach borrowed material from Remken, Vivaldi, and Telemann.
Brahms borrowed from Hayden and Beethoven. Beethoven borrowed from Bach, and Mozart borrowed from DuPort. Rachmaninoff borrowed from Brahms, who in turn borrowed from Liszt, who
¹⁵Leon Botstein, Reversing the Critical Tradition: Innovation, Modernity, and
Ideology in the Work and Career of Antonín Dvořák, in Dvořák and His World 45–
46 (Michael Beckerman ed., 1993); Michael Beckerman, Dvořák’s “New World”
Largo and The Song of Hiawatha, 19th Century Music, Summer 1992, at 35, 46.
¹⁶See Jessica Barbour, The 1812 Overture: An Attempted Narration, Oxford U.
Press Blog (Aug. 20, 2013), URL supra p. vi.
12
in turn had borrowed from Paganini. In fact, Brahms noted that “imitation” has significant pedagogical benefits in that it “is the best way
to understand how music is written and structured.”
J. Michael Keyes, Musical Musings: The Case for Rethinking Music Copyright Protection, 10 Mich. Telecomm. & Tech. L. Rev. 407, 427 (2004).
Nor is musical borrowing limited to classical composers. Film composer
John Williams turned numerous themes of others into cinema score pieces. Besides Jaws as discussed above, the main theme of Star Wars is “remarkably similar” to Erich Korngold’s score for the 1942 film Kings Row, and the Imperial March
drew on Chopin’s Piano Sonata No. 2 (popularly known as the Funeral March).¹⁷
Indeed, whole genres of music center around the reuse of thematic elements
of past works. Modern, particularly American, traditions of music including
jazz, blues, and rock and roll “reflect the pervasiveness of musical borrowing.”
Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing, Copyright
and Cultural Context, 84 N.C. L. Rev. 547, 615–18 (2006); John R. Zoesch III, “Discontented Blues”: Jazz Arrangements and the Case for Improvements in Copyright
Law, 55 Cath. U. L. Rev. 867, 870–71 (2006). Hip hop, as one commentator notes,
is a field of music that relies heavily on “intensive borrowing” from other music,
¹⁷See Darryn King, The Legacy of the Star Wars “Imperial March” Marches
On, Vanity Fair (Dec. 15, 2015), URL supra p. vii; Rich Drees, Cinematic Swipe:
Williams’ Star Wars And Korngold’s King’s Row Scores, Film Buff Online (Oct. 28,
2013), URL supra p. vi.
13
often through sampling of segments of other sound recordings. Arewa, supra, at
622. And it is undeniable that hip hop has become an expansive, valuable, and
innovative genre of music, perhaps because of that use of sampling.
After reviewing the use of repetition and borrowing in hip hop within the
larger tradition of classical music borrowing (as described above) and African
music traditions, the commentator concludes that “copyright standards, particularly in the music area, must have greater flexibility to accommodate varying
styles and types of musical production.” Id. at 630. And what ought to be true for
hip hop ought to be true in general. These unique circumstances of the artistic
endeavor of music composition demand greater flexibility to accommodate the
need for repetition in music.
II.
A Reqirement of a Stronger Showing of Substantial Similarity in Music Copyright Cases Is Appropriate to Promote the
Progress of the Arts
The necessity of musical borrowing to musical creativity demands a permis-
sive standard for copyright infringement that appropriately permits such nonliteral borrowing. Copyright has long been understood to be premised on a utilitarian justification, that the monopoly right to exclude copying is granted in service of encouraging creation and dissemination of new works. Consequently, the
scope of that monopoly right must be limited to avoid interference with downstream creators who build upon the works of the past. In the field of music where
14
this additive form of creativity is at its apex, special concern must be given to ensuring that the scope of copyright adequately accounts for the needs of future
musicians.
1.
Copyright’s raison d’être has never been merely to reward authors; the
“well settled” view is that “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” Kirtsaeng, No. 15-375,
at 6 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994)). “The sole interest
of the United States and the primary object in conferring the monopoly lie in the
general benefits derived by the public from the labors of authors.” United States v.
Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (quoting Fox Film Corp. v. Doyal,
286 U.S. 123, 127 (1932)). Copyright “reflects a balance of competing claims on the
public interest,” so “private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); see also Feist Publ’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (“The primary objective of copyright
is . . . to promote the Progress of Science and useful Arts.”) (quoting U.S. Const.
art. I, § 8, cl. 8) (alterations omitted).
Serving that public purpose requires limits on the scope of copyright, to
ensure that future downstream authors and creators are able to draw from the
wellspring of existing works. As the Supreme Court noted last Term, copyright
15
balances “two subsidiary aims: encouraging and rewarding authors’ creations
while also enabling others to build upon that work.” Kirtsaeng, No. 15-375, at 6.
Limits on the degree of copyrightability are essential to enabling that buildingupon. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 526–27 (1994). Feist, applying the
idea/expression dichotomy of copyright, held that factual matter must remain
uncopyrightable so that copyright “encourages others to build freely upon the
ideas and information conveyed by a work.” 499 U.S. at 350 (citing Harper & Row,
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556–57 (1985)); see also Sony Corp.
of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (describing copyright
as “limited grant”).¹⁸
Doctrine identifies the need for copyright to have limits that facilitate future
creation, but ordinary experience proves it. Creation in all endeavors, especially
the artistic, depends on some degree of borrowing, adaptation, and even copying.
Judicial opinions by necessity quote the works of the past to establish the law of
the future. Literary writing often involves allusions to earlier works. Painters
and sculptors use and improve upon the artistic techniques of past masters.
¹⁸Indeed, certain limitations on the reach of copyright may be constitutionally
required under the First Amendment. See Golan, 132 S. Ct. at 889; Eldred, 537
U.S. at 219–20; Neil Weinstock Netanel, First Amendment Constraints on Copyright After Golan v. Holder, 60 UCLA L. Rev. 1082, 1086 (2013) (following Golan
and Eldred, “neither Congress nor the courts may eviscerate copyright law’s
idea/expression dichotomy or fair use privilege without running afoul of the First
Amendment”).
16
And the ability to borrow without running afoul of copyright law is most
important for consumer-innovators: the garage musicians, amateur painters, and
fanfiction writers of the world. While large content-creating firms have the experience and negotiating leverage to obtain licenses for their background materials, individuals do not. See Stephen Breyer, The Uneasy Case for Copyright, 84
Harv. L. Rev. 281, 347 (1970) (noting importance of transaction costs to copyright
analysis). Nevertheless, individuals are a powerful creative and innovative force
today. See Eric von Hippel, Democratizing Innovation 19–22 (2005) (describing
prevalence of consumer-driven innovation). To leave them sidelined because of
the high transaction costs of copyright licensing would undermine an important
part of creative progress that copyright law is intended to promote.
2.
The numerous reasons presented above for why borrowing is of special
importance in musical composition a fortiori emphasize the need for limits on the
scope of copyright infringement in that field. The structure of tonal music, use
of musical techniques to evoke emotional responses, and frequency of quotation
and borrowing in music all show that, more so than in other fields of art, nonliteral copying is needed for artists to push the boundaries of musical innovation.
Copyright law offers several doctrines that permit for this accommodation
of musical borrowing. Most pertinent to this case, the degree of substantial similarity required has been seen by courts as an appropriate avenue to contem-
17
plate practical and normative concerns about permissible copying. See discussion
supra p. 7. Common musical motifs might be treated as scènes à faire, “stock
themes commonly linked to a particular genre.” Walker v. Time Life Films, Inc.,
784 F.2d 44, 50 (2d Cir. 1986); see also Cadwell, supra, at 164–65. Certain borrowings might properly be deemed ideas under the idea/expression dichotomy.
Yet whatever doctrinal form it may take, it is critical that copyright be properly tailored to the special circumstances that attend the natural uses and forms
of expression of music. For copyright, like all intellectual property, is concerned
with separating authors into independent wells of creativity: DC Comics shall be
one universe and Marvel shall be another, and never the twain shall meet (absent
a complex licensing deal). See Edmund W. Kitch, The Nature and Function of the
Patent System, 20 J.L. & Econ. 265, 266 (1977) (using the term “prospect theory”
for this separational function of intellectual property).
Yet that “prospect theory” of intellectual property is at odds with the basic
nature of music: togetherness. Music allows people of all sorts to share experiences, communicate with each other, build and improve upon others’ creations,
and glean an understanding of our collective humanity. Copyright law has limits on its ability to force ideas apart, to ensure that ideas may collide to allow for
progress in science and the arts. In an age of rapidly expanding creativity, those
collisions of ideas are all the more pressingly important today.
18
CONCLUSION
For the foregoing reasons, this Court should reverse or vacate the judgment
of the trial court.
Respectfully submitted,
Dated: August 30, 2016
s/Charles Duan
Charles Duan
Counsel of Record
Public Knowledge
1818 N Street NW, Suite 410
Washington, DC 20036
(202) 861-0020
[email protected]
Counsel for amicus curiae
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CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 4,378 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using the xelatex
typesetting system, verison 3.14159265-2.6-0.99991, in the typeface Linux Libertine.
Dated: August 30, 2016
s/Charles Duan
Charles Duan
Counsel for amicus curiae
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Brief of Public Knowledge as Amicus Curiae in Support of Plaintiffs-CounterDefendants–Appellants with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit by using the appellate CM/ECF system on August 30, 2016.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: August 30, 2016
s/Charles Duan
Charles Duan
Counsel for amicus curiae
21